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Supreme Court to consider legality of land grabs
"Watershed case": Citizens' rights vs. economic development the main issue
The Salt Lake Tribune
February 19, 2005

Cities across the country - including in Utah - will be paying close attention on Tuesday to a case before the U.S. Supreme Court.

After years of conflicting state-court decisions, the high court will take up the question of whether it's constitutional for government to take private property to create jobs and increase tax revenue.

"Everyone's watching it with great interest," says Norm Ashton, Ogden's city attorney.

The case - Kelo v. New London, Conn. - began in 2001, when the pharmaceutical company Pfizer built a plant in New London, overlooking the Thames River, near where it meets Long Island Sound.

The adjacent neighborhood, Fort Trumbull, was a well-kept neighborhood. But the city's redevelopment agency used its power of eminent domain to take homes and land so that upscale housing, a hotel and office building could be built to complement the Pfizer project.

Susette Kelo and a handful of other residents refused to budge, and while the bulldozers knocked down their neighbors' homes, they fought the city's right to take their property for economic development. They won initially, but the Connecticut Supreme Court ruled that the city's desire to create jobs and tax revenue justified taking the land.

Paul Drecksel, a Salt Lake City attorney who has represented both cities and landowners in condemnation cases, says Kelo v. New London probably will be a watershed case.

"There is a lot of uncertainty right now about how broad that power [eminent domain] is and what the Constitution really allows. That's why everyone's watching this case so closely."

Under the Fifth Amendment to the U.S. Constitution, government can take private property via eminent domain only for "public use" and with just compensation. Early on, that was interpreted to mean government could take property for roads and schools.

Over the decades, the use of eminent domain has expanded. In the 1950s, the Supreme Court said cleaning up slums - or "blighted" neighborhoods, as ensuing laws called them - was a public use worthy of eminent domain.

But in recent years, as cities increasingly team up with private enterprise on redevelopment projects, the meaning of public use has been extended to other benefits, such as new jobs and more tax revenue.

In seven states, high courts have found that economic development is a public use for which eminent domain can be invoked, Drecksel said. In six states, high courts have taken the opposite view.

The Supreme Court probably decided to hear the Kelo case because "it frames the issue very clearly," says Drecksel. It narrows the issue to economic development.

Drecksel expects a "whole new set of rules" to come out of the court's decision, which could take months. "It will have a big impact both on cities and landowners who are faced with condemnation," Drecksel said.

Utah cities rarely use eminent domain for economic development, and when they do, it's usually when a neighborhood has been declared to be blighted.

That's the case now in Ogden, where the city is initiating condemnation proceedings against a few property owners in a 21-acre downtown neighborhood downtown where Wal-Mart wants to build a superstore. The majority of the property owners have agreed to sell to the city.

Ed Rutan, Salt Lake City's attorney, said he is paying attention to the case because it could mean the loss of a tool that the city has had - but rarely, if ever, used.

"In today's world there are a lot of situations where cities are cooperating with private enterprise to pursue things that are in the public interest," Rutan said.

But two opponents of the use of eminent domain for private development are hoping the Supreme Court will rule that using eminent domain for economic development is unconstitutional.

Robyn Bagley, of Sandy, heads up the new group Citizens Coalition for RDA Reform, which is lobbying the Legislature to curtail the powers of redevelopment agencies.

"I don't think that anyone should have eminent domain exercised on them for retail, for Wal-Mart, for private corporations," Bagley said.

Dorothy Littrell, of North Ogden, says she and other opponents of the Wal-Mart project will rally Monday afternoon in downtown Ogden to call attention to the Kelo case being argued in Washington the next day.

"We have to decide what is the purpose of government," said Littrell. "The purpose of government is not to create jobs. It's to govern."

© Copyright 2005, The Salt Lake Tribune.